CHIANG

Interim Decision #2488




                              MATTER OF CHIANG

                           In Deportation Proceedings
                                     A-18504376

                        Decided by Board July 30, 1075
Respondent, an applicant for adjustment of status under section 295 of the Immigration
 and Nationa:ity Act, as amended, who seeks exemption from the labor certification
 requirement of section 212(a)(14) of the Act under the provisions of 8 CFR 212.8(b)(4) as
 an investor in one company, and who holds with another company an unrelated full-time
 job for which he has not obtained a labor certification, would be ineligible for exemption
 from the labor certification requirement as an investor even if he could submit adequate
 proof of his iivestment since a grant of "investor" status to such an alien who holds an
 unrelated full-time job in competition with American labor would.circumvent the labor
 certification :-equirements of the statute.
CHARGE:
  Order Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant--
                        remained longer than permitted,
ON BEHALF OF RESPONDENT:           Hiram W. Ewan, Esquire
                                   840 North Broadway, Suite 200
                                   Los Angeles, California 90012


   In a decision dated December 14, 1972, the immigration judge found
the respondent deportable as charged, denied his application for adjustment of status under section 245 of the Immigration and Nationality
Act, and granted him the privilege of departing voluntarily from the
United States in lieu of deportation. The respondent has appealed from
that decision. The appeal will be dismissed.
   The alien respondent is a native and citizen of China. At the hearing,
he conceded deportability. The only issue on this appeal concerns the
respondent's application for adjustment of status as an alien who is
exempt from the labor certification requirements of the Act by virtue of
the "investor" exemption contained in 8 CFR 212.8(b)(4).
   The respondent entered the United States in 1969 as a nonimmigrant
student. Shortly thereafter, in violation of his student status, he took
employrriFolt with the Global Marine Company as an accountant. The
respondent was still employed by the Global Marine Company at the
time of the :nearing, earning $805 per month. No labor certification for
such employment was obtained.
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  The respondent claims to have invested in an enterprise known as the
California Herb Tonic Company. The exact nature of this business is
somewhat unclear from the record. The only evidence of the alleged
investment is an unaudited balance sheet, prepared by the respondent
himself, and a City of Los Angeles Business Tax Statement. 1
   The respondent formally presented his "investor" claim prior to the
1973 amendment of 8 CFR 212.8(b)(4). He is therefore entitled to have
his claim judged by whichever formulation of the regulations is more
favorable to him. Matter of Heitland, 14 L & N. Dec. 563 (BIA 1974);
Matter of Ko, 

 (Dep. Assoc. Comm. 1973). However,
the respondent's "investor" claim is patently inadequate to qualify
under either form of the regulation.
   With respect to the pre-1973 regulations, the respondent has not
established either that his investment tends to expand job opportunities
or that the investment is of an amount adequate to insure that the
alien's primary function will not be as skilled or unskilled laborer. See
Matter of Heitland, supra. With respect to the present form of the
regulations, the respondent has not met the standards of proof set forth
in Matter of Ahmad, 

 (BIA 1974), nor has he
demonstrated any likelihood that he could meet them.
   Finally, even if the respondent could submit adequate proof of his
investment, we would still find him to be statutorily ineligible for
adjustment of status, because of his employment with Global Marine
Company for which no labor certification has been obtained. InMatter of
Pfahler, 

 (BIA 1967), we held that where an alien
applicant for admission was, coming to the United States with labor
certification for one job, but was planning on obtaining a second job, it
was incumbent upon him to obtain labor certification for the second job
as well. We believe that the same rationale should be applied to one
seeking the "investor" exemption from the labor certification requirement- of the Act. We have stated that the "the 'investor' exemption
contained in 8 CFR 212.8(b)(4) should not become a means of circumventing the normal labor certification procedures for an ordinary skilled
or unskilled laborer." Matter of Ahmad, supra. To grant "investor"
status to an alien who holds an unrelated full -time job in competition
with American labor would be to countenance the very type of evasion
of the labor certification procedures that we were concerned with in
Matter of Ahmad.
   The immigration judge's decision was correct. The appeal will be
dismissed.
   ORDER: The appeal is dismissed.
  Further order: Pursuant to the immigration judge's order, the re-
  ' The latter has the respondent's name written in over the crossed out name of his
"partner's" former spouse.
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spondent is permitted to depart from the United States voluntarily
within 90 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.




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